A consumer complaint about pharmaceutical advertising reveals the
inadequacy of the Medicines Australia (MA) Code of Conduct that
regulates the marketing of drugs in Australia. While direct to consumer
advertising is prohibited in Australia, companies are employing
increasingly novel marketing techniques to reach consumers and are
succeeding. The Code needs to be strengthened, starting with higher
sanctions and more effective monitoring. Failing this, new legislation
needs to be introduced and enforced through an appropriate regulator.

Consumer complaint

A consumer lodged a complaint with the MA Code of Conduct Committee
about an erectile dysfunction drug for which Bayer was offering a money
back guarantee. An extensive advertising campaign run by Saatchi &
Saatchi Healthcare comprised advertisements in leading medical journals,
broadsheet newspapers and on the internet. The ads were spread over two
pages, one with a banana pointing down and another with a banana
pointing up.

Bayer sent vouchers, which were the size of prescription pads, to both
GPs and pharmacists. These vouchers were money back guarantees which
were to be given to patients by the GP with the script or by the
pharmacist when dispensing the drug.

The Committee considered the complaint against 9 sections of the Code
and found the advertisement was in breach of 1; section 10.5. The
committee decided that the money back guarantee decreased the value of
prescription medicines and brought discredit to the industry[i].

The Committee determined that Bayer should [ii]:

* take immediate action to cease offering the money back guarantee
to healthcare professionals;
* issue a corrective letter to all health care professionals who
received letters about the offer;
* publish a corrective letter in all health professional journals
where the advertisement appeared.

There are three main concerns about the course that this complaint took.
First, the Committee took six weeks to make a decision, during which
time Bayer continued to offer the money back guarantee. The campaign ran
for over two months.

Second, even though Bayer was found to be in breach of the Code, they
were not fined. In the last financial year, 51 complaints were lodged
with the Code of Conduct Committee. Of these 20 companies were fined.
Though the maximum fine is $200,000, most of the fines were under
$25,000. The average fine imposed in 2005 was $23,575 (pdf here), which
is not likely to deter any pharmaceutical companies whose marketing
budgets far exceed these amounts.

Third, the MA Monitoring Committee did not identify this breach – it was
brought to their attention by a consumer. A fundamental problem with the
current self regulatory arrangement is the lack of effective monitoring.
MA has established a Monitoring Committee which is responsible for
“reviewing promotional material submitted by companies” (link here). The
Monitoring Committee failed to notice the Bayer banana ads. It is in the
pharmaceutical industry’s interest to create a guise that monitoring is
being undertaken, when in fact very little is being done.

What’s wrong with advertising prescription drugs?

Direct to consumer advertising is illegal in Australia but companies get
around it by adopting novel marketing techniques.

Many drug advertisements inflate the prevalence of conditions and
medicalise normal behaviours and life stages. For example, menopause is
no longer viewed as a natural part of the ageing process, but a
condition which requires medication. The erectile dysfunction drug that
Bayer advertised adopted similar techniques using quotes such as “love
shouldn’t have to wait”. [iii] The main aim of advertisements is to
increase demand for products. The implication here is that consumers
should take more drugs, even when they may not need them.

The other side of the coin is financial. If consumers are demanding more
drugs, the Government and ultimately taxpayers are spending (and
possibly wasting) more on the Pharmaceutical Benefits Scheme (PBS).

Policy directions

There are two main policy options which could be adopted. The first is
to strengthen the Code. This could be done by imposing higher sanctions
which deter repeat breaches of the Code. The higher sanctions would
replace the nominal amounts being imposed now and would be in proportion
to the possible harm which could result from unethical drug marketing.
When the ACCC approved version 15 of the Code it noted that it was
“concerned that they [member companies] are regularly breaching the
Code, and that the penalties imposed by the Code Committee do not appear
to reflect this”. [iv]

Strengthening the role of the Monitoring Committee and decreasing the
length of time to resolve complaints would help to reduce inappropriate
or unethical drug marketing.

Increasing transparency in the way the Code is administered would also
improve the current self regulatory scheme. This could include making
information available about pharmaceutical representatives training and
how much companies spend on marketing.

The ACCC approved version 15 of the Medicines Australia Code of Conduct
on 26 April 2006. Authorisation was granted on the condition that the
Monitoring Committee would require each member company to report on the
number of events they hold with doctors, the venue, and the number of
attendees; and to provide a copy of the invitation and any printed
material given to the attendees. The new provisions are a step in the
right direction as they will increase transparency. Disappointingly, MA
responded by appealing to the Australian Competition Tribunal. This
matter has not yet been resolved.

The Code could also be strengthened by regulating pharmaceutical
advertising in medical software. Studies have found that advertisements
appearing in prescribing software are often in breach of the Code. [v]

Failing the option of strengthening the Code, legislation providing for
effective limits on drug advertisements should be introduced and
enforced by an appropriate regulator.

References

[i] Extract of the minutes of the Code of Conduct Committee Meeting held
on 17 July 2006.

All that is necessary for evil to triumph is for good men to do nothing
When bad men combine, the good must associate; else they will fall one by one, an unpitied sacrifice in a contemptible struggle.
- Edmund Burke

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